Opinion
96 CIV. 213 (DLC)
February 13, 2001
For Plaintiff: William Hemric, Pro Se # 95A6090 Sonyea, NY
For Defendants: Michael Tiliakos, City of New York Law Department New York, NY
OPINION AND ORDER
Plaintiff pro Se, William Hemric ("Hemric"), brought this action against the City of New York ("City"), the Department of Corrections, Donnell Moultrie ("Moultrie"), and Mark Burks ("Burks") under 42 U.S.C. § 1983 ("Section 1983") and state law, alleging violations of his civil rights while he was incarcerated on Rikers Island. On August 30, 2000, this Court granted partial summary judgment against plaintiff on all claims against the Department of Corrections and plaintiff's Section 1983 claims and tort claim of intentional infliction of emotional distress against the City. Plaintiff proceeded to trial against Moultrie and Burks on his Section 1983 and negligence claims, and against all defendants on his claims of assault, battery, and false imprisonment.
After a trial, conducted from October 16 to 18, 2000, a jury found that Hemric had established by a preponderance of the evidence that his rights under Section 1983 were violated by defendant Moultrie, that assault or battery was committed against him by Moultrie, and that plaintiff was entitled to $10,000 in compensatory damages. Hemric now moves pursuant to Rule 59, Fed.R.Civ.P., for a new trial limited to the question of damages and for this Court's reconsideration of its award of summary judgment for the City on his Section 1983 claim. For the following reasons, plaintiff's motion is granted in part.
BACKGROUND
At trial, Hemric showed the following. Hemric was housed in Section 7-Top at the George Motchen Detention Center ("GMDC") at Rikers Island on Saturday, May 13, 1995. Officer Burks, who was stationed at the central command area on the tier ("the Bubble"), electrically opened some of the cells on the tier so that the inmates could clean their cells and the common areas. Officer Moultrie manually opened other cell doors on the tier and ordered the inmates to do their chores. Hemric was sleeping. Officer Moultrie roused Hemric by poking at him with a foot-long metal rod he used to open the cells manually — the ER rod. Hemric awoke angry and shouted at Moultrie. Moultrie left Hemric's cell when other inmates began to gather, but ordered Hemric to come to the Bubble. Hemric got dressed and went to the Bubble, expecting to be written up for failing to obey an order and for shouting at an officer. Moultrie walked by Hemric and, without warning, smashed him in the face with his fist while holding the ER rod. Hemric was hit at least twice. A struggle ensued and there was evidence that Officer Burks came out of the Bubble and helped his fellow officer. Other inmates gathered around the fighting men. Eventually, the fighting ceased and Hemric returned to his cell to wash up and get a towel to stem the bleeding, which was profuse. At that point, Moultrie activated his alarm and a supervising officer and others arrived. They found Hemric at his cell and Moultrie nearby. Hemric testified that he lost several teeth during the attack and continued to lose teeth in the following weeks and months. He also suffered a black eye, a cut lip which required stitches, injuries to his shoulder, rib, and knee, and recurring headaches or earaches.
During an internal investigation and at trial, Officers Moultrie and Burks presented a different version of the events of May 13, 1995. The Officers asserted that Hemric attacked Moultrie immediately after Moultrie opened his cell, and that Hemric's attack of Moultrie was unprovoked. Moultrie denied having the ER rod in his hand and said that he simply hit Hemric in the jaw to defend himself after Hemric charged him. According to the Officers, Officer Burks did not leave his post at the Bubble, and witnessed the incident from that location.
An internal investigation produced evidence that was consistent with Hemric's description of the incident. Several inmates described the attack on Hemric as unprovoked and as occurring at the Bubble, and every inmate but one described the attack in a way that was consistent with Hemric's description. Photographs were introduced into evidence at trial that were taken during the internal investigation to document the "scene of the crime." All the witnesses who were shown the photographs testified that they were taken at or near the Bubble. No witness testified that they portrayed Hemric' s cell area, where Officers Moultrie and Burks testified that the incident occurred.
In direct contradiction to the evidence gathered during the internal investigation, however, Captain Rosemary Butler concluded, in her Investigating Supervisor's Report, that Hemric was the instigator. Butler wrote in her report that only one of the inmates who witnessed the event and made a statement asserted that Officer Moultrie initiated the attack, and that that statement was not substantiated by other inmate or staff reports. However, six of the inmate witness' statements attached to Butler's own report affirmatively stated that Moultrie was the instigator; some indicated that the incident occurred at the Bubble, and none of the six located the incident at Hemric's cell. The only inmate witness statement that corroborated Officers Moultrie's and Burk's version of the events was taken May 15, two days after the incident occurred, whereas all of the other witness statements were taken the day of or the day after the incident. In addition, Butler's report did not consider several voluntary inmate statements that corroborated Hemric's account. Butler's report also states that she considered Hemric's and Moultrie's medical reports which indicate that Officer Moultrie hurt his hand, whereas Hemric sustained two cracked teeth, multiple bruises to his face, and an injury to his shoulder that limited his range of motion. These injuries are also inconsistent with the Officers' statements and Butler's conclusion.
Angelo Manzi, an assistant deputy warden at the time, wrote a Tour Commander's Report regarding the incident that concluded, based on inmate statements, medical findings, and Butler's report, that "the force used was necessary to defend against subject inmate's unprovoked assault on staff. The force was appropriate and within the guidelines of the department." Manzi's report also recommended that Hemric "should receive the maximum time allowable in punitive segregation and . . . be processed for rearrest." Manzi's conclusions, while consistent with Butler's conclusions, were inconsistent with the witness statements attached to Butler's report as well as the voluntary inmate statements and the medical records that had been compiled during the investigation. Hemric was not rearrested, but he was sentenced to sixty days in punitive segregation.
DISCUSSION
A. New Trial on Damages
Hemric moves pursuant to Rule 59(a), Fed.R.Civ.P., for a new trial on the issue of damages. Rule 59(a), Fed.R.Civ.P. provides that "[a] new trial may be granted to all or any of the parties on all or part of the issues . . . in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." A motion for a new trial may be granted when the district court finds that "the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice," and may be granted "even if there is substantial evidence to support the jury's verdict." Caruolo v. John Crane, Inc., 226 F.3d 46, 54 (2d Cir. 2000) (internal quotation omitted). A court should, however, bear in mind that it should only grant such a motion when the jury's verdict is "egregious," and "should rarely disturb a jury's evaluation of a witness's credibility." DLC Management Corp. v. Town of Hyde Park, 163 F.3d 124, 134 (2d Cir. 1998). A court's disagreement with the jury's verdict is insufficient reason to grant a motion for a new trial. Mallis v. Bankers Trust Co., 717 F.2d 683, 691 (2d Cir. 1983).
Hemric contends that he is entitled to a new trial limited to the question of damages because he did not present certain evidence at trial with the understanding that there would be a separate proceeding on the issue of damages. Having reviewed the record, there is no statement made by any participant in these proceedings that reflects an understanding that the trial would be bifurcated. Indeed, the record reflects repeated references to and recognition of Hemric's obligation to prove damages at the trial.
On June 12, 2000, at a pre-trial conference, the Court explained that plaintiff could testify at trial regarding "all of the events that are relevant at this trial, as well as, of course, [his] damages and the ways in which [he] believe[d] [he had] suffered from those events." Hemric testified and was cross-examined regarding his damages at trial. When Hemric testified at trial that he was unable to receive medical assistance following the incident, the Court instructed the jury that this testimony was "relevant to any decision you might have to make with respect to damages here." On October 17, 2000, plaintiff received a draft jury charge that included an instruction on damages and a draft special verdict form that asked the jury whether and in what amount it found damages. Hemric made no objection to either, nor did he make any statement during pre-trial conferences or the trial proceedings that reflected a belief that the trial would be bifurcated. Had Hemric believed that damages would be decided in a separate proceeding, he had repeated opportunities to make this belief known. Moreover, the jury's damages award was not seriously erroneous in light of the evidence submitted at trial. Accordingly, the Court will not disturb the jury's award of damages.
B. Reconsideration of Partial Summary Judgment
Hemric additionally requests that the Court reconsider a portion of its Opinion and Order of August 30, 2000, granting partial summary judgment against plaintiff on his Section 1983 claim against the City, brought pursuant to Monell v. Department of Social Services, 436 U.S. 658, 694 (1978), and based on allegations that there was widespread tolerance of corrections officer abuse of prisoners that constituted a municipal policy or practice and led to his assault. Because Hemric's request for reconsideration was filed more than ten days after the entry of the ruling to which it relates, it is construed as a motion brought under Rule 60(b), Fed.R.Civ.P. Phillips v. Corbin, 132 F.3d 867, 869 (2d Cir. 1998).
Rule 60(b) provides for relief from judgment for reasons of:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); . . . or (6) any other reason justifying relief from the operation of the judgment.
Rule 60(b), Fed.R.Civ.P. Any motion under Rule 60(b) must be made within a "reasonable time"; a motion made under Rule 60(b)(1) or (2) must be made within one year of the entry of judgment. Id.
When considering a motion under Rule 60(b), a court "must balance the policy in favor of hearing a litigant's claims on the merits against the policy in favor of finality." Kotlicky v. United States Fidelity Guaranty Co., 817 F.2d 6, 9 (2d Cir. 1987). For a Rule 60(b) motion to prevail, a three-part test must be met. First, there must be "highly convincing" evidence supporting the motion. Second, the moving party must show good cause for failing to act sooner. Third, the moving party must show that granting the motion will not impose an undue hardship on the other party. Id. Rule 60(b)(2) will provide relief when the movant presents newly discovered evidence that could not have been discovered earlier and that is relevant to the merits of the litigation. Schwartz v. Capital Liquidators, Inc., 984 F.2d 53, 54 (2d Cir. 1993) (per curiam).
In his complaint, Hemric asserts that there was widespread tolerance of corrections officer abuse of prisoners that constituted a municipal policy or practice and led to the assault against him. The Court dismissed Hemric's Section 1983 claim against the City because he submitted no evidence in support of these allegations. At trial, however, there was evidence to support his Monell claim. Particularly, the testimony of Angelo Manzi, Manzi's Tour Commander Report, and Captain Rosemary Butler's Investigation Report support Hemric's claim that there existed a pattern or practice of cursory and improperly conducted investigations, failure to punish corrections officers for physical abuse of prisoners, and unfounded discipline of inmates. If proven, these allegations reflect an institutional tolerance of corrections officers' use of excessive force against inmates at Rikers Island.
There is good cause for Hemric's failure to produce this evidence in opposition to defendants' summary judgment motion. Plaintiff's former counsel withdrew on June 30, 1998, in the midst of discovery. Hemric, incarcerated and proceeding pro se, was ill equipped to pursue discovery effectively on his Monell claim or present evidence in opposition to defendants' motion for summary judgment on that claim. Having won his excessive force claim against Moultrie, Hemric is for the first time in a position to challenge effectively the correctness of the Court's grant of summary judgment. Defendants have identified no undue hardship that would result from reopening this claim. Indeed, the City is in no different position than it would have been had the Court followed the common practice of bifurcating the trial of the Monell claim from the underlying claim of excessive force. Accordingly, plaintiff's motion for reconsideration of the Court's award of summary judgment for the City on plaintiff's Section 1983 claim is granted.
C. Appointment of Counsel
On November 2, 1999, Judge Sprizzo ordered the Pro Se Office of this Court to seek counsel to represent plaintiff pursuant to 28 U.S.C. § 1915. Such counsel were never identified or assigned to represent plaintiff following the withdrawal of his attorney in 1998. In deciding whether to exercise their discretion to appoint counsel, the Second Circuit has suggested that courts consider
"whether the indigent's position seems likely to be of substance. If the claim meets this threshold requirement, the court should then consider the indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in that case why appointment of counsel would be more likely to lead to a just determination."Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997) (quotingHodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986)
The evidence at trial indicates that Hemric's Section 1983 claim against the City is likely to be of substance. As a pro se prisoner alleging a policy or practice of tolerance of excessive force by corrections officers against inmates over five years ago, plaintiff is not in a good position to investigate or present the facts at issue here. Although plaintiff showed himself to be capable in the courtroom, the complexity of plaintiff's Monell claim, under these circumstances, makes it difficult for plaintiff to prosecute that claim himself effectively. Counsel will, therefore, be appointed in order to assist the plaintiff to proceed with his Section 1983 claim against the City.
CONCLUSION
Plaintiff's request for a new trial on damages is denied. Plaintiff's request for reconsideration of this Court's award of summary judgment for the City on plaintiff's Section 1983 claim is granted. Plaintiff will be appointed counsel to proceed with his Section 1983 claim against the City.
SO ORDERED: